Wednesday, June 30, 2010

Nadya Khalife wrote an article in the Guardian yesterday accusing the United Arab Emirates of condoning sexual violence. In this article, Khalife's reasoning and analysis of the situation is careless and betrayed a fundamental lack of understanding of the way the court applied Islamic law to approach the issue. Yet populist hysteria surrounding court judgements is nothing new. In the United Kingdom a wave of media sensationalism surrounded the court's decision in the Martin case, where a farmer had shot and killed one of two burglars and was given a prison sentence as a result. One may argue that rape and manslaughter are two different things, but the fact is that the reasoning adopted by Ms. Khalife is precisely the same as that adopted by media critics of the English case.

What the article attempts to do is inform the reader that the claimant in this case was imprisoned because she was raped. A closer examination of the article later shows us this is not true.

In the United Arab Emirates, a country that prides itself on modernity and its willingness to advance women's rights, the criminal court in Abu Dhabi has sentenced an 18-year-old Emirati woman to a year in prison for illicit sex after she reported that six men had gang-raped her.

What Khalife does not understand, and this is a legal distinction that must be made clear by anybody reporting on cases, is that the Emirates court firstly distinguished between her giving consent to sexual intercourse with one man, on a balance of probabilities, and her lack of consent to being raped by six men. Once it had done so it then proceeded to sentence the six men for rape, but also sentenced her and her male companion's breaking of the law. This is actually a sophisticated and well thought out judgement which demonstrates that in this instance the court was deliberating in a reasoned and logical manner, and subsequently applied a proportional and adequate sentence. This is not, as the implication is suggested in the Guardian article, some arbitrary and cruel punishment.

The second wing of Ms Khalife's criticisms of the judgement relates to the following issue:

A week later, during the second hearing, the woman retracted her statement, reportedly to avoid lashes and a jail sentence for extramarital sex. She said that she was beaten by her brother after he found out that she had been speaking to men, and that as a result, she decided to report that she had been raped.

The Emirates court repealed the original sentences to the six men and lessened their sentences, and applied a punishment only to the woman and to her 19-year old male friend. Apparently Ms Khalife took exception to the fact that the court assumed the woman might have fabricated the earlier story. But this again betrays a poor understanding of legal issues on the part of the author of this article.

What the woman did, thinking she will avoid the sentencing for her own conduct which was not related to the rape, was to claim that she lied to the court about the rape when in fact, according to the woman, it was her brother who had beaten her. The woman is therefore either lying the first time, or she is lying in the second statement, and her credibility is compromised. There is no reasoned legal system in the civilized world that would not take a dim view of what this woman did. Lying in court is by itself a very, very serious offence - regardless of the motive. In this case the Emirates court took the only appropriate action, which was to lessen the severity of the charges against the defendant's and to uphold the original sentence on the woman and her male companion as this was unrelated to the separate charges of rape that she had raised. Again, this is reasoned and the product of deliberation, not at all arbitrary, and the proof lies in the court's judgement.

The final point made by Ms Khalife is that she is asking that the Islamic legal system should not make sexual relations outside of marriage illegal. This is a point which must be discussed on its own and beyond this simple blog post. If her article was to emphasise and strengthen her position on this particular point, it is a poor argument. If, on the other hand, she wishes to challenge the legitimacy of an interpretation of Islamic law on this matter, there were far better ways of doing so, and far better arguments to be made. But it seems a third explanation is also possible, and this is to delegitimise Islamic law as something backwards, arbitrary and no longer suitable for our present day and age. If that is the case, then as we have seen so far, the reasoning of the court and the way they have handled this case demonstrates the exact opposite.

2 comments:

Thanks for this, Wassim. I see your point now about what was wrong in the article and appreciate you explaining it. Though my views are likely to be similar to the author's, I definitely agree with you that she did not make her point successfully; had she wanted to advocate for consensual sex being a personal decision (a point with which I would agree), she did not do so in a way that makes sense.

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